DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[Complaint Case No: 352 of 2011]

                                                                Date of Institution  : 05.08.2011

                                                                                Date of Decision    : 13.03.2012

                                                                            ------------------------------------------

Sanjiv Kumar s/o Sh. Ram Parshad, R/o H.No. 1014, Sector 52, Chandigarh.

                                    ….Complainant.

(VERSUS)

[1]        M/s Gurbachan Singh (Showroom Manager), Three Vee Marketing (P) Ltd., SCO No. 1028-29, Sector 22-B Chandigarh.

[2]        Manjit Singh (Manager), Nokia Care, SCO No. 2333-34,2^nd Floor, Sector 22-C, Chandigarh.

---Opposite Parties.

BEFORE:            SHRI LAKSHMAN SHARMA                   PRESIDENT

                        MRS. MADHU MUTNEJA                             MEMBER

                        SHRI JASWINDER SINGH SIDHU            MEMBER

Argued By:            None for Complainant.

Opposite Party No.1 exparte.

Sh. Gaurav Bhardwaj, Adv for Opposite Party No. 2.

PER JASWINDER SINGH SIDHU, MEMBER

1)                     Complainant has filed the present complaint against the Opposite Parties on the grounds that the Complainant had purchased one Nokia 6303 handset bearing No. 359333030406138 from Opposite Party No.1 on 11.5.2011 in the name of his minor daughter Diksha by paying an amount of Rs.6300/- vide Bill No. 904.  Complainant claims that the cell phone in question started giving problem and went out of order after 1½ month. Complainant approached Opposite Party No.1 on 4.7.2011 who advised him to get in touch with Nokia Care (Opposite Party No.2) for necessary repairs.  

                        The Opposite Party No.2 after inspecting the cell phone disclosed that the handset was made in the year 2009 and hence, its warranty/ guaranty has expired in the year 2010. Opposite Party No.2 showed their inability to repair the cell phone in question as it was out of the guarantee period.

                        Complainant claims that Opposite Party No.1 has supplied him an outdated mobile set fraudulently and inspite of his repeated visits Opposite Party No.1 has neither replaced nor has conducted the required service of the handset in question.

                        Complainant aggrieved of the act & conduct of the Opposite Parties have filed the present complaint, seeking following reliefs:- 

2)                     Notice of this complaint was sent to Opposite Parties seeking their version/reply. However, despite proper service, nobody has appeared on behalf of Opposite Party No.1, therefore, it was preceded against exparte vide orders dated 04.10.2011.

3)                     The Opposite Party No.2 has contested the claim of the complainant by filing its reply taking preliminary objections to the effect that the present complaint is not maintainable as the Complainant has not come to this Forum with clean hands. It is also claimed that the Complainant did not approach the answering Opposite Party No.2 and the mobile set was never produced for repairs at their Center and when the same set was handed over to them in the open Forum, it  was duly repaired free of cost and the mobile set is working fine. It is also mentioned that the Complainant is not a consumer as per Section 2(1)(d) of Consumer Protection Act, 1986. As all the allegations of the Complainant are against Opposite Party No.1 and no relief has been claimed against answering Opposite Party No.2, the complaint deserves to be dismissed qua Opposite Party No.2.

                        On merits, Opposite Party No. 2 has contested the claim of the Complainant by giving a para-wise reply to all the averments of the present complaint. While replying to paras 1 to 3, Opposite Party No. 2 admits only to the part which are matter of record; whereas, the remaining averments are denied, as the same were to be answered by Opposite Party No.1. In reply to para 4 of the complaint, a demand is raised that the Complainant be put to strict proof for the allegations mentioned. It is also stated that the Complainant never approached the answering Opposite Party No. 2 for repairs and further claim that the retail invoice which is dated 11.5.2011 establishes that as per the terms and conditions, the warranty is for one year from the date of sale and the warranty of the mobile set in question is valid till 11.5.2012. In reply to para 5 and 6, Opposite Party No.2 claims that necessary answers to these allegations are to be made by Opposite Party No.1.  Opposite Party No.2 on aforementioned grounds prays for dismissal of complaint qua it with costs.  

4)                     Parties led their respective evidences.

5)                     As the Complainant failed to appear on the last date of hearing i.e. 12.03.2012, the arguments of the counsel for the OP No.2 were heard (Opposite Party No.1 being ex-parte). Hence, we have proceeded to dispose of the present complaint on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987, read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date), vide order dated 12.03.2012

6)                     Having gone through the entire complaint, version of the OPs, the evidence of the parties and with the able assistance of the ld. Counsel for the Opposite Party No. 2, we have come to the following conclusions.

7)                     As Opposite Party No.1 has failed to contest the claim of the Complainant, and even though being duly served, has preferred not to join the proceedings, hence it was proceeded against ex-parte by this Forum vide order dated 04.10.2011.  In the present circumstances, the entire complaint goes unrebutted against Opposite Party No.1.

8)                     It is noticed that Opposite Party No.2 before filing its version/ reply has volunteered to repair the handset in question; the handset was delivered to the counsel of Opposite Party No.2 by the Complainant on 3.11.2011 in the Forum itself, which was handed over back to the Complainant after necessary repairs on 11.11.2011. While receiving the handset  back the Complainant has preferred to press his allegations as mentioned in the present complaint.

9)                     We have gone through the version/ reply of Opposite Party No. 2, wherein while answering to the allegations of para 4 of the Complaint, it is claimed that from the perusal of invoice and its terms and conditions, the guarantee/ warranty of the mobile hand set in question is for one year from the date of its purchase i.e. 11.05.2011.  Opposite Party No.2 also claims that the Complainant did not visit their care centre at any point of time and he should be subjected to strict proof, so as to reach a proper conclusion. The reply is supported by an affidavit of one Sh. Manjit Singh, Opposite Party No.2 himself.

10)                  We have gone through the copy of retail invoice tendered by the Complainant and on perusal of the terms & conditions mentioned on the left hand lower corner under Col. 6 “Warranty/ Service at Nokia Care Centres Only” is mentioned. We find that from this condition the due period of warranty cannot be ascertained as claimed by Opposite Party No.2 in its reply.  Opposite Party No.2 has also failed to address the allegation as mentioned in para 4 about the year of manufacture of the mobile handset in question, alleged to be year 2009.  The silence of Opposite Party No.2 on this issue has left this allegation unaddressed. 

11)                  While taking a lenient view against Opposite Party No.2 who had volunteered to repair the handset in question and also considering the fact that the Complainant has not sought any relief against it, we deem it to be correct to dismiss this complaint qua Opposite Party No.2.

12)                  As the entire complaint has gone unrebutted against Opposite Party No.1 and also the relief sought by the Complainant is also against Opposite Party No.1, hence in these circumstances the complaint is allowed and we direct Opposite Party No.1 to:-

[a]        To refund Rs.6,300/- and receive the mobile set in question from the Complainant at his own cost.  We also saddle Opposite Party No.1 with a consolidated amount of compensation to the tune of Rs.3500/- on account of deficiency in service.

13)                  The above said order shall be complied within 30 days of its receipt by Opposite Party No.1; thereafter, Opposite Party No.1 shall be liable for an interest @18% per annum on the aforesaid amount of Rs.9800/-, till it is paid.   

14)                  Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

13^th March, 2012.                                                                                              Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER